NISAR HUSSAIN KHAN, J.---Instant revision petition is directed against judgment And decree of learned Additional District Judge-III, Mardan dated 14.10,2014 vide which by accepting appeal of respondents, judgment And decree of the trial court dated 26.3.2012 was set aside And suit of the petitioners/plaintiffs dismissed.
2. Brief facts of the case are that Mst. Lajpari, predecessor of the petitioners, filed a suit for declaration to the effect that she being legal heir of Mustaqeem Khan as his daughter is entitled to sharee share in his legacy And gift Mutations No.371, dated 28.12.1999 And No.537, dated 22.8.2002 on behalf of Mustaqeem Khan through defendant No.3 are wrong And illegal, fraudulent And ineffective upon her rights And liable to be cancelled. Entries to the extent of her share are liable to be restored in the revenue record. She alleged that Mustaqeem Khan died at the age of 100 years in April, 2004 after his long illness And lying on death bed for a period of 12 years And in that period defendant No.3 procured general power of attorney on his behalf And transferred 174 Kanals infavour of his son defendant No.1 And half of the property in favour of wife of his brother defendant No.2. She alleged that requirements of valid gift; offer, acceptance And delivery of possession, have neither been proved nor completed. Defendants in their written statements raised objection that plaintiff had also filed a suit against Mustaqeem Khan, predecessor, in the court of Senior Civil Judge, Islamabad, which after recording his statement through commission was dismissed; that Mustaqeem Khan entered into several transactions And executed different deeds, so plaintiff is not entitled to question these documents; that one of the donees Mst.Zulfara died And her inheritance mutation No.874 had duly been attested in favour of her legal heirs, including the plaintiff which she sold through registered deed No.72, dated 31.10.2009 And now she is estopped to question, those documents. On factual planes, they also categorically 'denied assertion of the plaintiff raised in the plaint. The learned trial court after framing the issues in view of divergent pleadings of the parties, recorded evidence And decreed the suit. Defendants filed appeal which was allowed by the appellate court and suit of the plaintiff was dismissed, hence this revision petition.
3. I have heard arguments of learned counsel for the parties and have gone through the record with their valuable assistance.
4. As is evident from the plaint, plaintiff has sought declaration of ownership in the legacy of Mustaqeem Khan being his daughter and sought cancellation of mutations No. 371, dated 28.12.1999 and mutation No. 537 dated 22.8.2002 attested on behalf of Mustaqeem Khan through Niaz Ali Khan, defendant No.3, general attorney. Admittedly both gift mutations were attested in favour of Mst. Zulfara wife of Zulfiqar and Akhtar Ali Khan son of Niaz Ali Khan, the general attorney of Mustaqeem Khan. It is pertinent to mention that Zulfiqar husband of Mst: Zulfara is real brother of General Attorney Niaz Ali Khan. Both mutations were entered and attested on the instruction of Niaz Ali Khan, General attorney of Mustaqeem Khan. Before proceeding ahead, it would be apt to once again elucidate relation of general attorney, for clarity, with the donor and donees/beneficiaries of both mutations. Mustaqeem Khan had no male issue and had three daughters; namely Mst.
Zulfara, Mst. Lajpari and Mst. Pari. Mst.Zulfara was married to Zulfiqar Ali Khan And Mst.Pari was married to Niaz All Khan, both real brothers, sons of Sabz Ali Khan, who in turn was real brother of Mustaqeem Khan. In this way Niaz Ali Khan And Zulfiqar Ali Khan were nephews of Mustaqeem Khan who were married to his two daughters. Mst. Lajpari was married to one Hukam Khan, out of family.
It is admitted position that one of the beneficiaries, namely Akhtar Ali Khan is real son of Niaz All Khan general attorney of Mustaqeem Khan while Mst. Zulfara is wife of Zulfiqar Ali Khan, real brother of general attorney Niaz Ali Khan. Thus in view of this detail of pedigree table, general attorney had transferred the property in favour of his kith And kins on the basis of general power of attorney and that too as a gift.
5. Defendants in view of this factual backdrop, were required to establish valid gifts being the beneficiaries of both the mutations. Proving of Offer, Acceptance and Delivery of possession, the three essential requirements of a valid gift, were sine qua non. It is evident from the suit mutation that these were not entered on the instructions of the donor. Rather it was the general attorney on whose instructions, mutations were entered And later on attested by the Revenue Officer in absence of donor, on the instructions of attorney Niaz Ali Khan. So first condition, in view of this factual position, is lacking. Regarding delivery of possession, learned counsel for petitioner referred Khasra Girdawari of the suit property as Ex.PW1/9 in which though Zulfiqar Ali Khan in some Khasra Nos. is entered as owner on the basis of said mutation but has no where been recorded in possession, so condition of delivery of possession is also not satisfied. It is settled law that if Any of the three conditions required for a gift is lacking, gift is invalid which does not create Any right whatsoever in favour of the alleged donees.
6. Moreso, disputed documents have been entered And attested by the attorney on the basis of general power of attorney purportedly conferred on him vide Ex.PW.1/2. Recitals of the power of attorney reveal that it contains so many deeds to be performed by the attorney which was executed on 27.3.1984. The attorney before transferring the property in favour of his son and sister- in-law was required to have fresh instructions, particularly for transfer of property to the donees as gift, it is admitted position of law that gift is a personal act of donor which can only be performed by himself And none else. If he appoints a person to make a gift, he at the same time can do and perform the same act by himself instead of delegating his power to gift the property. By not doing so by the donor himself, transaction becomes suspicious, that too when it has been effected after more than 17/18 years. It is statutory requirement of section 214 of the Contract Act, 1872 which cast duty on the agent in cases of difficulty to use reasonable diligence in communicating with the principal, And in seeking to obtain his instructions. In case of failure to do so, principal can repudiate the transaction so entered by his agent, without obtaining his consent, which in terms is disadvantageous to him. Similarly, in terms of Section 220 of the ibid Act, An agent who is guilty of misconduct in the business of his agency, is not .entitled to Any remuneration in respect of that part of the business which he has mis-conducted. The law developed on the question has time And again been reiterated that attorney while entering into transaction, particularly, transferring the property in favour of his close fiduciary relation is to take care And caution in obtaining consent of the principal for transfer of property. In case of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 Supreme Court 341), it was 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 And dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. If case of respondents/defendants is tested on the touchstone of the settled law, it appears that general/power of attorney contains numerous events for which principal has authorized the attorney including transfer of property. It was not specific for the same purpose for which it has been used by the attorney And that too by gifting huge property in favour of his kith And kins comprising his son And sister-in-law. There is chain of judgments on the question of the august Supreme Court And last in line is in case of Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh (2016 SCM R 1781) in which same principle was reiterated by holding that the power of attorney cannot be utilized for effecting a gift by the attorney, without intentions And directions of the principal to gift the property. Such intentions And directions must be proved on record. There was also no specific permission of the donor to gift the property, hence appeal of the donee was dismissed. In the instant case too, the principal even if has given the authority to gift his property, yet there is no reference that it should be gifted to the beneficiaries of the suit mutations And that too after long period of 17/18 years, in view of this delay And passage of such long time, principal was required to be consulted And permission could be sought for the said gift. An attempt has been made to make out a case of permission by tendering a document Ex.DW.1/4 in evidence which is An Iqrar Nama for gift of the property comprising two shops, but in its details, it also contains different Khasra Nos. It is strange that the said document has not been referred in written statement nor its marginal witnesses have been examined to prove its sanctity in compliance with Article-79 of Qanun-e-Shahadat Order, 1984. Beside that it was purportedly executed on 7th October, 1999 And one of the witnesses signed the same on 6.6.2000, Assistant Commissioner signed it on 10.6.2000, without describing the year And stamp of Notary Public is of 9th October, 1997, With all the different dates, it was a deed just to make its deficiency good which was not signed And executed in presence of the witnesses, hence it carries no value in the eye of law And would not help advance cause of the defendants/respondents.
7. Undisputedly, General Power of Attorney was executed on 27th of March, 1984. If the intention of Principal was to gift his property to beneficiaries of suit mutation, then why it was not gifted in 1984.
What made the attorney to wait for fifteen years for first and eighteen years for second mutation. It is but obvious from such inordinate delay that purpose of general power of attorney was not to gift the suit property. On the other hand, there is no tangible evidence which may substantiate that attorney at the time of gift of suit property had obtained permission of his principal, In wake of stated facts, it appears that attorney, because of advance age of principal, joined hands with his brother Zulfigar Ali And used the General Power of Attorney for personal gain by transferring property to his own son And wife of Zulfiqar Ali, to deprive the third daughter of Mustaqeem Khan.
8. In view of the above, the learned appellate court has fallen in error in appreciation of evidence and application of law for setting aside the well reasoned judgment of the trial court. The impugned judgment of the appellate court is based on misreading and non-reading of evidence, hence same stands set aside and that of the trial court is restored And consequently, suit of the plaintiffs stands decreed as prayed for. There is no order as to costs.