' MUHAMMAD AMEER BHATTI, J.---Through this Regular Second Appeal, the judgment of the learned First Appellate Court dated 27-6-2005 has been challenged, whereby the learned First Appellate Court while reversing the findings of the learned trial Court, decreed the suit of the respondent.
2, The brief facts necessary for the just decision of this case are that the respondent filed a suit for possession through pre-emption on 27-6-1997. The plaint averred that Tariq Javed, the original owner of land in dispute measuring 58-Kanals 10-Marlas had sold for ostensible consideration of Rs.10,00,000 (ten lac) to Farrukh A ltaf, the appellant/defendant. Further averred that the pre- emptor came to know about this sale on 2-6-1997 at 9-00 a.m. At 26-Shama Road, Afzal Motor Workshop through Muhammad Ishaq son of Allah Ditta, then and there he declared his intention to purchase this land, as such, he made the Talb-e-Mawathibat in accordance with law and then to fulfil the requirement of Talb-e-Ishhad, he issued the notices on 13-6-1997 to the appellant/defendant and ultimately filed the suit on 27-6-1997. The suit was contested by the appellants by way of filing their written statement where they apart from raising legal preliminary objections, controverted the facts of the case as well as the superior right of the respondent/plaintiff. From the divergent pleadings of the parties, learned trial Court framed nine issues and subsequently, vide order dated 3-5-1999, two additional issues had been framed.
Parties were allowed to lead their evidence according to the onus on issues and after providing the opportunity of hearing to the parties, the learned trial Court vide his judgment dated 10-2-2005 dismissed the suit. The appeal was filed by the respondents and the present appellant also filed the cross-objection. The learned First Appellate Court vide judgment dated 27-6-2005 allowed the appeal of the respondent, rejected the cross objections of the present appellant and subsequently, decreed the suit of the respondent hence this Regular Second Appeal.
3. The learned counsel for the petitioner contends that the stamp paper was purchased on 31-5- 1997 for the execution of the general power of attorney in favour of Muhammad Afzal son of Lal Din, the original pre-emptor of the suit land. The sale was took place on 21-5-1997. Talb-e-Muwathibat was made on 2-6-1997 and power of attorney was executed on 7-6-1997. On the basis of this eventuality, the contention of the learned counsel is twofold. One is that the preemptor gained the knowledge on 31-5-1997 when he purchased the stamp paper for execution of attorney in favour of his son but this power of attorney was executed on 7-6-1997, whereas the Talb-e-Muwathibat was made on 2-6-1997 which reflected that in fact at the time of purchase of stamp paper, the pre- emptor was well aware of the sale hence the Talb-e-Muwathibat was not made promptly, as such, the respondent/Lal Din pre-emptor could not succeed due to lack of Talb-e-Muwathibat. The other contention on the basis of this general attorney is that the general attorney was executed on 7-6- 1997, whereas Talb-eMuwathibat was made on 2-6-1997 and the power for issuing Talb-e-Ishhad has not been given in this general attorney whereas the attorney has made Talb-e-Ishhad as the attorney of Lal Din, the pre-emptor. In this way, the Talb-e-Ishhad was made by an incompetent person and the same cannot be considered in accordance with law and the suit has been rightly dismissed by the learned trial Court. Reliance is placed on (2007 SCMR 1344) Mst. Hassan Bano v.
Wali-ur-Rehman and 2 others, (2011 . CLC 1054) Muhammad Raees v. Sabz Ali and others. In another judgment referred as (2003 CLC 1336) Nasib Khan v. Inayat Jan and another, learned counsel for the petitioner contends that the attorney does not reflect the power of making of Talbs, hence the power exercised by the attorney for issuing notice on behalf of the preemptor having no validity in the eye of law and the suit was liable to be dismissed. Further contends that in (PLD 2004 Peshawar 226) Muhammad Yaqoob v. Sadaqat-and 2 others, the same view has been reiterated.
He has further relied upon the judgments (PLD 1997 Lahore 649) Mst. Aisha v. Rahim Bakhsh and others, (1996 CLC 623) Salma and another v. Manzoor Hussain and another, (2007 CLC 819)
Humayina Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others, (2007 SCMR 1193)
Mst. Lalan Bibi and others v. Muhammad Khan and others, (PLD 1997 Karachi 276) Sirajuddin Paracha and 12 others v. Mehboob Elahi and 3 others, (PLD 2005 SC 418) Imam Din and 4 others v.
Bashir Ahmed and 10 others and (PLD 2006 SC 309) Ati_q-ur-Rehrnan through (Real Father) and another v. Muhammad Amin.
4. On the other hand, the learned counsel for the respondent contends that-under section 14 of the Punjab Pre-emption Act, the demands can be made by guardian or agent. Reliance is placed on (2000 YLR 3035) Muhammad Aslam v. Ahmad Hassan, (1999 SCMR 717) Abdul Malik v. Muhammad Latif, (PLD 1991 SC 1051) Syed Phul Shah v. Muhammad Hussain and 10 others, (2006 SCMR 1761)
Muhammad Ilyas and others v. Khadim Hussain and others, (1996 SCMR 856) Muhammad Shafi v..
Mushtaq Ahmed through legal heirs and others, (2006 CLC 1715) Wali Khan v. Noor Ahmad and another, (2006 YLR 2584) Muhammad Sultan Khan v. Gohar Aman and another, (PLD 2011 SC 151)
Muhammad Tariq and others v. Mst. Shamsa Tanveer and others. Further contends that stamp paper was purchased on 31-5-1997, not for the purpose of filing the suit but for giving the entire power to be exercised on behalf of the pre-emptor, as he attained the maturity and his son was authorized to perform on his behalf all the acts pertaining to his land and it was not for the purpose of the suit for pre-emption. However, subsequently before the execution of this power of attorney on 2-6-1997, the pre-emptor gained the knowledge of sale in dispute and he made the Talb-e- Muwathibat at the spot as required under the law and subsequently he executed the power of attorney on 7-6-1997 and at: the time of execution of this power of attorney, he specifically granted the power to file .The suit of pre-emption and filing of pre-emption suit includes the making of Talbs, hence the Talb-e-Ishhad was rightly made by the attorney of the Pre-emptor and there was/ is no illegality and irregularity in the judgment of the learned first Appellate Court.
5. The contentions of both the learned counsel for the parties have been taken into consideration along with the record of the case.
6. The contention of the learned counsel for the appellants is that the attorney is not empowered to make Talb-eIshhad, hence the Talb-e-Ishhad performed by the attorney is nullity in the eye of law.
The case-laws referred in this behalf by both the parties have been scrutinized and I have also taken the opportunity to go through the relevant provisions of law. It is appropriate for the determination of this question to re-produce section 14 of the Punjab Pre-emption Act, 1991 for ready referenee:-- "14. Demand by guardian or agent. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf"
' According to this section, the power to make Talbs has been allowed to be exercised by the guardian or agent but with the condition that the principle must Show his inability to perform the Talbs. Apart from that there is no evidence on the record of case in this behalf except the general power of attorney. Even the attorney has not uttered a single word about the inability of the principle to make Talb-e-Ishhad nor this power has been entrusted to attorney by the principle in his general power of attorney. Besides this, it is noticed that the other condition precedent for exercising the Talbs on behalf of the principle that the power must has been assigned through specific words and it is settled law that the power of attorney must be construed according to its terms and the words of the power of attorney are to be formulated accordingly. Reliance is placed on (2003 CLC 1336). Nasib Khan v. Inayat Jan and another. Terms of powers of attorney must be construed strictly.
7. I have also gone through section 236. Demands for pre-emption of Muhammadan Law, the Explanation H of this Section "(Talb) demands that made by the father or brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he had been previously authorized to make the demand (Taib)". From this explanation it is a pre-condition for the agent to make Talbe- Ishhad if he has been authorized by his principal. Mere holding of general power of attorney does not empower the agent to do whatever he would like but he has to perform his duties within the four corner of the power of attorney, otherwise beyond that will not get any validity in the eye of law. Reliance is placed on (2011 CLC 1054) Muhammad Raees v. Sabz Ali and others.
"Thus written instruments are to be interpreted in the terms stated therein. The intention of the parties would only be considered, when the terms and words implied therein are vague and cannot be given any meaning".
8. In the light of the above discussion, the general power of attorney has, been scrutinized where only the right to exercise the power of Talb-e-Khasoomat has been entrusted but no power for Talb-e-Ishhad has been given to the attorney by the executant in the general power of attorney.
The Taib-e-Ishhad is as necessary as Talbe-Muwathibat, as both the Talbs are sine qua non for succeeding, in the suit for preemption, failing which is fatal the right of pre-emption. Reliance is placed on (2011 SCMR 762) Bashir Ahmed v. Ghulam Rasool, (2007 SCMR 1105) Muhammad Bashir and others v. Abbas AB Shah and (PLD 2007 SC 302) Mian Pir Khan and others v. Haji Malik Amanullah Khan; "Performance of both Talbs successfully is sine qua non for getting a decree in pre-emption suit--- Supreme Court approved the view that a plaint wherein date, place and time of Talb-eMuwathibat and date of issuing notice of performance of Talb-eIshhad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, it would be fatal for the pre-emption suit."
9. Perusal of the said power of attorney shows that Muhammad Afzal P.W.10 was not specifically authorized to make Talb-e-Ishhad. No doubt, the power to exercise the Talb-e-Khasoomat is clearly available in the power of attorney. The notice of Talb-e-Ishhad is also perused where this notice had been issued by the attorney, although attorney was not empowered to exercise this right, as such, no specific power in the power of attorney had been given by the executant, the principal to the attorney. Therefore, Talb-e-Ishhad made by the agent was without any lawful authority. The clear mandate of section 14 of the Punjab Pre-emption Act is that a validly appointed agent can make the requisite Talbs on behalf of the principal. It is well-settled law that power of attorney must be construed strictly and the legal interpretation of such, authority vested through written instrument had been discussed by the August Supreme Court of Pakistan in (PLD 2005 SC 418) Im_amnD_ in and 4 others v. Bashi'. Ahmed and 10 others. ---Rule of construction-- Authority of attorney-2-Object and scope-Principal and attorney-- Relationship---Power of attorney is a written authorization by virtue of which the principal appoints a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of such nature is to assign the authority of the principal to another person as his agent---Main object of such type of agency is that agent has to act in the name of principal and principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument---In view of nature of authority, power of attorney must be strictly construed and proved and further the object and scope of power of attorney must be seen in the light of its recital to ascertain the manner of the 'exercise of authority in relation to the terms and conditions specified in the instrument---Rule of construction of such document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act---General words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution---Settled rule is thaI before an act purported to be done under power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument."
' Thus the written instruments are to be interpreted in terms stated therein. The contention of the learned counsel for the respondents that under section 14, the guardian has also the same power to do so the son has exercised the power on behalf of his father by issuing notice of Talb-eIshhad, can be considered a valid exercise of power and there is no illegality by exercising the power by the son on behalf of his father as permitted by section 14 of the Punjab Pre-emption Act. For that matter, it is necessary to go through the definition of the guardian and I picked up, the definition provided under different Acts:--
(1) Guardians and Wards Act 1890, Subsection (2) of section 4. "Guardian" means a person having the care of the person of a minor or of his property or of both his ' person and property and includes--- ' A natural guardian, ' A guardian appointed by the will of the minor's father or mother,
(iii) A guardian appointed or declared by a Court, and
(iv) A person empowered to act as such by or under any enactment relating to any Court of wards.
(Hindu Minority and Guardianship Act (32 of 1956), S.4 (n).
(2) (Children (Pledging of Labour) Act (2 of 1933), S.2).
"Guardian" includes any person having legal custody of or control over a child
(3) Children Act (60 of 1960), S.2(k)
"Guardian" in relation to a child, includes any person who, in the opinion of the competent authority having cognizance of any proceedings in relation to a child, has, for the time being, the actual charge of, or control over, that child. Chandra Prabhuji Jain Temple v. Harikrishna, AIR 1973 SC 2565."
(4) (Medical Termination of Pregnancy Act (34 of 1971), S.2(a)
"Guardian" paeans a person having the care of the person of a minor or a lunatic.
(5) Vaccination Act (13 of 1880), S.2. "'Guardian" includes any person who has accepted or assumed the, care or custody of any child.
(6) Juvenile Justice Act.
"Guardian" in relation to a Juvenile, includes any person who in the opinion of the competent authority, having cognizance of any proceedings in relation to a Juvenile, has, for the time being, the actual charge of, or Control over, that Juvenile.
(7) Care and Protection of Children Act 2000, S.2(j)
"Guardian" in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognized. By the competent authority as a guardian in course of proceedings before that authority. (Juvenile Justice).
(8) According. To Black's Law Dictionary.
' A person legally entrusted with the care of, and managing the property and rights of, another person, usually a minor. In most typical situations, parents are the guardians of their children. If anything were to happen to the parents, the parents can indicate who they would like to become the legal guardians of their children. The Courts can intervene in extreme situations or in cases where an alternate guardian had not been determined.
' So the conclusion from the above definitions is that an individual who, by legal appointment of by the effect of a written law, is given custody of both the 1 property and the person of one who is unable to manage their own affairs, such as a child or mentally- disabled person.
' In other words: "Guardian means a person having the care of the person of a minor or of his property or of both his person and property". From the careful study of this definition leaves no doubt in my mind that the word guardian used in the Punjab Preemption Act does not connote the son on behalf of his father can exercise the power for making Talbs. It means the person who is not having the ability to exercise the power so his/her guardian can exercise the power, as such, the respondents' argument has no legal force, therefore, guardian as envisage in section 14 of the Punjab Pre- J emption Act, 1991 means that an individual who by legal appointment or by the effect of a written law, is given custody of both property and the person of one who is unable to manage his own affairs, such as a child or mentally disabled person. In this scenario, the interpretation of son as resorted to by the learned counsel for the respondents does not fall within :the purview of the guardian. In this peculiar case, the arguments of the learned counsel for the respondents are repelled.
10. The perusal of the general attorney Exh.P.15 also reflects that at the time of execution of this document only the power for filing the suit of pre-emption has been granted. J have given my thoughtful consideration, the executant although had given the power for filing the suit but he has not reiterated his previous act/right of exercising 'ralb-e-Muwathibat, which was mandatory to empower the agent and enable him by passing on the information that he has already made the Talb-e-Muwathibat on such and such place at such and such time and on such and such date, so that the agent could be able to deliver this information to the Court besides giving the right to exercise Talb-e-Ishhad. This information has also not been delivered to the attorney to pass on to the Court about the making of Talb-e-Muwathibat, which was vital information, should have been delivered through;this valid document.
11. In view of the clear and consistent principle, I am of the affirmed view that the attorney cannot exercise the authority which is not expressly given through the general attorney. A such, the attorney does not have any right to exercise this personal right and to exercise the Talb-e-Ishhad by the attorney on behalf of the principal without his express authority is declared to be invalid and without lawful authority. In sum, without fulfilling the requirement of Talbs, the suit of the pre- emptor is not maintainable as Talbs are sine qua non for filing the suit. As such, the findings recorded by the learned First Appellate Court are not in consonance of the law and the same is set aside. Consequently, the judgment of the learned trial Court dated 10-2-2005 stands revived. The net result is that the suit of the respondents stands dismissed.