' This revision petition has been preferred against decree, order & judgment dated 8.5.2013 passed by learned Addl: District Judge-VI, Peshawar, whereby he partially accepted the appeal of Respondent No, and recalled the order, judgment and decree of dismissal of learned Civil Judge- XXX, Peshawar.
' Arguments heard and record perused.
2. A perusal of record reveals that the respondents filed a suit against the petitioner for declaration to the effect that General Power of Attorney No, 1198 on behalf of Mst. Gulshan Agha widow of Sardar Agha Muhammad Yousaf, mother of the parties except Petitioner No, 2 in favour of Petitioner No, 1 Agha Raza her son attested on 3.4.1998 and mortgage deed attested on 3.4.1998 to the extent of 1/4 share of House No, J-1191/J2039, situated at Mohallah Koocha Resaldar Qissa Khwani Peshawar, are wrong, illegal and result of undue influence and was ineffective upon the rights of plaintiffs. It was averred that mother of the plaintiffs and Defendant No, 1 died on 29.4.2002, who was aged, illiterate and ailing lady and General Power of Attorney was the result of undue influence and executed without her consent by Defendants/Petitioner No, 1 (their brother) and thereafter mortgaged the property with condition of sale in favour of his wife/Defendant/ Petitioner No, 2, in lieu of Rs,50,000/- wherein the condition laid down was that if Rs,50,000/- were not paid within 15 days, she would be considered as owner of the house. The suit was contested by defendants by filing written statement wherein it is alleged that the suit house was purchased by Defendant/Petitioner No, 1 to the extent of share of his step mother and also with respect to the share of his real mother and to this effect General Power of Attorney was attested on 3.4.1998, legally and without undue influence. It is also averred that the plaintiffs/respondents have received the amount in lieu of their share from the mother and have got no right in the suit property.
3. It is pertinent to mention that petitioner Mst. Rameena Raza wife of Agha Raza and Respondent No, 1 Mst. Tamseela remained involved in litigation before the Rent Controller for ejectment of respondent from the-suit house which was allowed and later on adjourned sine die on account of the instant litigation. The proceedings before Rent Controller, summary in nature, where in the issue of declaration has not been resolved as it is the domain of Civil Court only and findings of the Rent Controller, persona designator have no binding affect upon the Civil Court, the Court of sole jurisdiction to determine the question of title.
4. So far as the execution of General Power of Attorney Bearing No, 1198 attested on 3.4.1998 is concerned, Mst. Gulshan Agha mother of the parties has at own authorized Petitioner No, 1 her son to deal with her rights in the property. The plea that she has sold it in favour of petitioner taken in the written statement is misplaced, as the document is silent to this effect. The witnesses of the deed namely Syed Qalb-e-Abbas Advocate who appeared as DW.4 and Zahid Ullah Marwat Advocate allegedly identified Mst. Gulshan Ara before Sub-Registrar at the time of attestation of said documents. Both the witnesses are neither relatives nor the executants was known to them prior to attestation of Ex.DW.4/1. The witnesses have categorically admitted that they have no relation with the parties nor they knew Gulshan Agha personally. They were even unaware of the permission of Mst. Gulshan Agha for of document.
5. It is by now established that beneficiary of the document has to prove its contents. It is the bounden duty of the beneficiary to produce evidence to the effect that the document has validly scribed and attested. The Sub-Registrar who made endorsement on the document being important entity ought to have been produced by the petitioners and mere production of Registry Moharrir who is only custodian of record would not be sufficient to prove that the Executant Mst.
Gulshan Agah put her appearance before the Sub-Registrar and has given consent for execution and attestation of the document. The 'plea taken in written statement also runs counter to the contents o documents and as such Ex.DW.4/1 has not properly been attested and has rightly been discarded by the Court of appeal.
6. As far as the mortgage deed Ex.DW.1/1 dated 3.4.1998 is concerned, its mortgage by conditional sale to the extent of 1/4 share in the disputed house made by alleged. Attorney/petitioner in favour of his wife. The time given in the deed is one month for payment of mortgaged money and on failure of return the Petitioner No, 2/wife would become exclusive owner, which is against the spirit of law. Admittedly no suit for foreclosure has been filed by Petitioner No, 2, mortgagee and in such eventuality mortgagee has no right to claim the ownership of the property. The provision' relating to mortgage by conditional sale have not been properly adhered to. The payment of consideration has not been proved nor the purpose of execution of alleged deed has been mentioned with special reference to the fact that the mortgagee happens to be the wife of mortgagor residing in same house, having no source of independent income which shows that the transaction was collusively made in order to deprive the legal heirs of Principal/owner from getting their shari share out of her legacy. I More so the alleged Attorney had to take special permission from the Principal for mortgage/transfer of property in favour of his wife/Petitioner No, 2 as there exists fiduciary relation between them and legally without permission from Principal no such transfer can be effected under the law. The wisdom derived from the case of "Muhammad Taj vs. Arshad Mehmood & others" reported in 2009 SCMR 114, wherein while making reliance on the case of ',Tamil Akhtar & others vs. Las Baba & others (PLD 2003 SC 494) it was observed by the apex Court that where the General Attorney transfer-the property of his Principal in his own name or in the name of his close fiduciary relation he has to take special permission from the Principal.
7. Apart from this as the General Power of Attorney has not been validly attested therefore any act done on the basis of General Power of Attorney would be of no legal effect. It is noted with concern that both the deeds were executed on one and same date. The amount of mortgage has not been proved to have, exchanged hands. Moreso, when the Petitioner No, 2/wife had no source of income.
The petitioners are still residing as spouses in one house and transfer without permission in favour of his wife by the petitioner leads to the conclusion that it was the result of collusion between them in order to deprive the legal heirs of Mst. Gulshan Agha from the legal shari share out of the legacy of their predecessor in accordance with law.
8. The Court of appeal has disallowed the relief to Respondents Nos. 2 & 3/plaintiffs on the ground that after filing written 'statement they did not turn up and only relief granted in favour of Plaintiff/Respondent No, 1 to the extent of her share which is misplaced, as legally when General Power of Attorney is held not validly attested then any act performed by the attorney on the basis of G P A would be of no legal effect as if the foundation is baseless the made on PLD 1996 Peshawar 1, wherein his lordship observed that the original transaction effected being illegal and not proper, entire structure built on it would crumble.
"When the mutation is not legal and proper, the entire structure built on it should crumble and the limitation will not be hurdled in the way of the plaintiffs. In the circumstances of the case the plaintiffs are presumed to be co-sharers being the legal heirs of Shah Farman and shall be presumed to be in possession of the suit property alongwith the other co-owners."
9. The findings of Court of appeal to this effect are modified fand decree is granted in favour of respondents whereby the Deed No, 1133 dated 03.04.1998 is hereby annulled in toto alongwith General Power of Attorney No, 1198 dated 3.4.1998 and all the legal heirs are entitled to get their share out of legacy of their mother Mst. Gulshan Agha as per their respective shares in accordance with law.
' For the aforesaid reasons, this petition being devoid of merit is dismissed in the above terms.